tumbo and another vs girion 2005 tzhc 39 13 september 2005
The application for revision is incompetent because the applicants had an adequate and specific remedy under Order IX rule 13 of the Civil Procedure Code to set aside the ex parte judgment, which they failed to pursue or justify bypassing.
Source-derived case information.
- Citation
- tumbo and another vs girion 2005 tzhc 39 13 september 2005
- Parties
- Applicant: Maruna Tumbo Tumbo; Applicant: Maria Magomba; Respondent: Medard Girion
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 13 September 2005
- Procedural Posture
- Civil Revision / Application for Revision After Ex Parte Judgment
- Outcome
- application struck out with costs
- Legal Topics
- Revision, Ex Parte Judgment, Setting Aside Judgment, Procedural Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maruna Tumbo Tumbo
Applicant
Maria Magomba
Applicant
Medard Girion
Respondent
Procedural Posture
Civil Revision / Application for Revision After Ex Parte Judgment
Legal Issues
- 1 Whether revision is a proper remedy against an ex parte judgment when Order IX rule 13 Civil Procedure Code provides a specific remedy
Ratio Decidendi
The application for revision is incompetent because the applicants had an adequate and specific remedy under Order IX rule 13 of the Civil Procedure Code to set aside the ex parte judgment, which they failed to pursue or justify bypassing.
Court Disposition
application struck out with costs
Orders
- Application for revision is struck out with costs.
Full Case Text
Judgment text and source record
1 paragraphs
1. MARUNA TUMBO TUMBO 2. MARIA MAGOMBA In Morogoro District Court Civil Case No. 61 of 2000, the respondent, Medard Girion, had filed a suit against the applicants for damages. The applicants defaulted and an exparte judgment was entered for the respondent on 2/10/2000. Dissatisfied the applicants have filed an application for Revision of the trial courts proceedings on account of a number of irregularities and prays that the trial court be directed to hear the case interpartes. At the hearing, the applicants were represented by M/S United Law Chambers and the respondents were represented by S.A. Massati and Co. Advocates. The respondent, opposed the application for revision and stated that the legal remedy for the applicants was not an application for revision but by way of an application under Order IX rule 13, of the Civil Procedure Code, to set aside such order and to restore the suit. In response to the respondent's contention, the applicants countered that revision is another avenue open to the applicant for remedy because there was an error material to the merits of the case, pursuant to the provisions of Section 44 (1) (b) of the Magistrates Courts Act, 1984. The exparte judgment against the applicants was entered interms of Order IX rule 6 of the Civil Procedure Code. A remedy to set aside such exparte judgment is provided for under Order IX rule 13 of the Civil Procedure Code, as was correctly stated by the respondent and conceded by the applicants. Despite conceding that rule 13 above was an appropriate remedy; the applicants do not state their reasons for preferring revision to the direct route under rule 13. I expected the applicants to state if the remedy under rule 13 is inadequate. Even if the applicants were time barred to bring the application under rule 13; they could have applied for the enlargement of time, upon sufficient cause being shown; e.g. as pastoralists they move around with their animals in search of pasture, etc. All in all; and for the reasons I have given above, the application for revision is incompetently before this court. Accordingly it is struck out with costs.